It might be fun to have a beer with Chief Justice John Roberts, but God spare me from ever having to play Scrabble against him.
The constant in Roberts' career is that he is, well, a word nerd, enamored of dictionaries, derivations, grammatical parsing, and fine points of usage. Those skills were on display today in the Court's decision in Federal Communications Commission v. AT&T Inc., in which the Court unanimously decided (Justice Elena Kagan recused herself) that the words "personal privacy" in the Freedom of Information Act do not cover a giant corporation (PDF).
John Roberts is to word meanings what Captain Ahab was to pale whales.
AT&T had overcharged schools and libraries under a special FCC-regulated program designed to help them get telecommunications services at a reduced rate. The FCC requested bucketloads of corporate documents to determine how what penalty to impose on the company. AT&T's competitors filed a FOIA request for the documents.
Routine so far. But AT&T asked the agency to block disclosure under exemption 7(c) of the Act, which protects documents that could "constitute an unwarranted invasion of personal privacy." The FCC rejected this argument, but the Third Circuit Court of Appeals bought it. Both FOIA and the federal Dictionary Act say that the word "person" can mean an individual or a corporation, the court below noted. Because "person" is "the root from which the statutory word . . . is derived, . . . [i]t would be very odd indeed for an adjectival form of a defined term not to refer back to that defined term."
Law clerks, take note: do not kick John G. Roberts in the kneecap and say "Overrule this, Vocabulary Boy!" FCC v. AT&T was argued on January 19; the opinion came down on March 1--barely a Supreme Court heartbeat. It's easy to imagine the eagerness with which Roberts assigned the opinion to himself and his quiet glee as he snuck away from thankless duties--like urging Congress to confirm some judges already--to indulge his love affair with the English language. He does not so much reverse the court below as bury it under multivolume dictionaries:
Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun "crab" refers variously to a crustacean and a type of apple, while the related adjective "crabbed" can refer to handwriting that is "difficult to read," Webster's Third New International Dictionary 527 (2002); "corny" can mean "using familiar and stereotyped formulas believed to appeal to the unsophisticated," id. , at 509, which has little to do with "corn," id. , at 507 ("the seeds of any of the cereal grasses used for food"); and while "crank" is "a part of an axis bent at right angles," "cranky" can mean "given to fretful fussiness," id. , at 530.
Even in cases such as these there may well be a link between the noun and the adjective. "Cranky" describes a person with a "wayward" or "capricious" temper, see 3 Oxford English Dictionary 1117 (2d ed. 1989) (OED), which might bear some relation to the distorted or crooked angular shape from which a "crank" takes its name. That is not the point. What is significant is that, in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words.
But wait! There's more! The above related only to general linguistic principles. Now let's lick our thumbs and look at more dictionary entries, this time specifically directed at the word "personal":
Dictionaries also suggest that "personal" does not ordinarily relate to artificial "persons" such as corporations. See, e.g. , 7 OED 726 (1933) (" [o]f, pertaining to . . . the individual person or self," "individual; private; one's own," " [o]f or pertaining to one's person, body, or figure," " [o]f, pertaining to, or characteristic of a person or self-conscious being, as opposed to a thing or abstraction"); 11 OED at 599-600 (2d ed. 1989) (same); Webster's Third New International Dictionary 1686 (1976) (" relating to the person or body"; " relating to an individual, his character, conduct, motives, or private affairs"; " relating to or characteristic of human beings as distinct from things"); ibid. (2002) (same).
Still not satisfied? Well, let's look at the definition of the term "personal privacy":
AT&T's argument treats the term "personal privacy" as simply the sum of its two words: the privacy of a person. . . . But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. "Personal" in the phrase "personal privacy" conveys more than just "of a person." It suggests a type of privacy evocative of human concerns--not the sort usually associated with an entity like, say, AT&T.
There are, of course, different ways of deciding a statutory case like this. A judge could look to the purpose of the statute--encouraging greater transparency--and reason that extending this (at best) ambiguous exception to corporations would work against that. Or the case could turn on the legislative history of the provision--what did members of Congress and committees say when the statute was enacted? Or it could scour caselaw for analogous uses of the terms. AT&T's brief had argued from federal caselaw and executive branch documents that, it said, supported its interpretation. The FCC had argued that extending "personal privacy" to corporations would require courts to engage in "a balancing of such newly created organizational privacy interests against the interest of the public (including some of the same shareholders and constituents) in disclosure."
But Roberts starts and finishes in the reference section. He is to word meanings what Captain Ahab was to pale whales. Nothing in the opinion addresses any larger question of policy or jurisprudence, or even hints that he knows what the statute is for. For all the opinion shows, the Court could be a Turing machine, analyzing the structure of a cryptogram without reference to its "meaning."
Roberts goes out of his way to make clear that this statutory decision does not give any hint how far the Court is willing to carry the principle of Citizens United v. Federal Election Commission, which held that corporations had free-speech rights as extensive as those of individuals: "this case does not call upon us to pass on the scope of a corporation's 'privacy' interests as a matter of constitutional or common law."
While working in the Reagan White House, Roberts incessantly picked at the prose diction of both other officials and outside correspondents writing to the president. A public educator who criticized Reagan's education policies was dismissed by Roberts with a snarky note that he "inadvertently proves our point about the quality of public education by incorrectly using 'affect' for 'effect.'" He critiqued a letter from three District of Columbia officials as "reading as if it were an awkward translation from Bulgarian."
It is probably Roberts' obsession with editing others that led to the most humiliating moment of his career, his muffing of the presidential oath during Barack Obama's 2008 inauguration. The Constitution begins the oath thus: "I do solemnly swear that I will faithfully execute the office of President of the United States." Somewhere in the brain an alarm went off--inelegance! Dangling modifier! Change! Change! And it emerged from Roberts's mouth as "that I will execute the office of President to the United States faithfully."
Reading his opinion in FCC v. AT&T from the bench, the normally saturnine Roberts glowed like a band geek who had just been awarded the piccolo solo in "The Stars and Stripes Forever." But picking apart words is not really the most important thing judges do. Nor is constantly thinking you can say it better than anyone else the most engaging trait of a judge.
This article available online at: